S. Roy, J.

1. In all these writ petitions, common question of law is involved. these cases were heard together and are being disposed of by this judgment.

2. Except petitioner No.1 in C. W. J. C. No.802 of 1990 (R) all the other petitioners are contractors and executing works contract. there is not much facts which are required to be noticed in these cases, but if necessary facts in C. W. J. C. No.802 of 1990 (R), which were referred to on behalf of the petitioners at the time of hearing as the representative petition, will be noticed.

3. The vires of Sec.25 of the Bihar Finance Act, 1981 (the Act) as amended by the Bihar Taxation Laws (Amendment and Validation) Act, 1990 (Amendment and Validation Act) has been challenged in these writ petitions as also the enforcibility of notification dated 7th November, 1984, issued under the unamended Sec.25-A.

4. Section 2s-A of the Act as introduced in the Act by Bihar Finance act, 1984 which read as follows : -

"notwithstanding anything contained in Sec.26 every person making any payment in discharge of any liability on account of valuable consideration payable for the transfer of property in goods, whether as goods or in some other form, involved in execution of works contract shall be lawfully competent to deduct an amount not exceeding four percentum purporting to be a part or full of the tax payable on such sales, from the bills or invoices raised by the works contractor as payable by the person : provided that no such payment or discharge of any bill raised by the works contractor shall be made without deduction referred to in sub-section (1): provided further that if c the State Government is satisfied that it is necessary to do so in the interest of the State revenue it may notify the names/posts of such persons who shall be lawfully competent person to make such deduction as referred to in subsection (1) : (2) the deduction referred to in sub-section (1) shall be made in the manner which may be prescribed. (3) the payment of such deduction into the Government Treasury shall be the responsibility of the person making such deduction. (4) the person making such deduction shall issue deduction certificate in the prescribed manner to the person or dealer from whose bill or invoice such deduction has been made. (5) If any person contravenes the provisions of sub-sections (1), (3)and (4), the prescribed authority shall, after giving an opportunity of being heard in the manner prescribed, by an order in writing, direct that such person shall pay by way of penalty, a sum not exceeding twice the amount so deducted and not deposited into the Government Treasury in the manner prescribed. "

the section provided the maximum rate at which tax was to be deducted the State Government on 7th November, 1984, issued a notification fixing the rate at 4 percentum and it reads as follows ; -

"notification dated the 7th November, 1984. S. O.1212.- In exercise of the power conferred by sub-section (1) of section 25-A of the Bihar Finance Act, 1981 (Bihar Act No.5 of 1981) the Governor of Bibar is pleased to direct that the amount of tax to be deducted under sub-section (1) of Section 25-A shall be at the rate of four percentum.2. This Notification shall be deemed to have come into force with effect from the 1st April, 1984. By the order of the Governor of Bihar. Sd- N. P. Singh. Commissioner of Commercial Taxes and Special secretary to the Governor, Finance (Commercial taxes) Department, Bihar, Patna. "

5. Section 25-A was amended from time to time. It was last amended by Sec.11 of the Amendment and Validation Act and after amendment, the section reads as follows : -

"notwithstanding anything contained in Sec.26, every person making any payment in discharge of any liability on account of valuable consideration payable for the transfer of property in goods, whether as goods or in some other form, involved in the execution of works contract shall be lawfully competent to deduct an amount as specif